A employee of mine called this morning and has a problem/ he left and went to see his fater in mexico and on the return trip he was stopped in portland oregon by immigration, b1/b2 visa taken, and sent back to mexico. was told they had info that he was living and working in the U.S. they said they had info his wife was working, what company,and that she just had a baby, also had their address. they have 5 children,all citizens only 1 over 21. what will the overstays do to the oldest childs filing of the i-130 and would they be eligible for a waiver if needed for the illegal time?? thanks AL

An employee of yours???

yes an employee of mine. he ahs worked for me for 4 yrs

Sorry he was here on a visitors visa and he was an employee of yours and you yourself are going thru the process of LEGAL IMMIGRATION? Just want to be sure Im reading this correctly.....

yes you are correct . i do not pry into the status of my employees and was surprised to see he was on a b1/b2. he has a valid ss# (for work only) and it has been verified with SS every year. i have 650 employees to deal with and have a verification code with the ss administration to verify the ss# before they are employed. i do not understand the b1/b2/ but he has had the SS card for 22yrs

Are you serious? You're illegally employing someone on a tourist visa (have done so for 4 years) and you want legal immigration advice? How the heck did this person still have a valid B1/B2 visa(to think he could re-enter) if his oldest child is a 21 year old USC (by virtue of birth in US I suppose)? I thought tourist visas were valid for 10 years....and you must not overstay your I-94....which if he's worked for you for 4 years, I'm assuming he's overstayed it by a little, don't you think?

-P

what does his situation have to do with mine anyway ? i thought this forum was hear for help and not to judge. thanks AL

Yes...he can have a SS# and card w/ the name Jose Lopez, when his real name is Jorge Lopez!

Its my understanding that an employer must verify more than just SS#'s before hiring an immigrant, no?


-P

For waiver info you might want to seek out kitkat1 at ***removed***.com.

That would be family based immigration dot com

The SS number could have been granted from another entry.

Hey guys - let's keep respectful here and on the topic of the immigration questions asked.

Yes its here to help the legal ones OHHHH PLEASE

You're right, but its somewhere in the Terms of Service, I think that we can't give advice to someone on how to break the law...which for me personally means not condoning a "blatantly" illegal action. But that's just MO

But to answser your initial question. If your employee has been turned away at POE, it depends on what classification is stamped in his passport. He may very well not be eligible for a waiver on overstay, given that he was told they have information of his illegal employement. Where does the I-130 filed by the oldest child stand? (Has it been approved, still waiting, what?)

you really need to get your facts straight before making a un verified comment . all that is required is the i-9. because of the size of my company we have to call SS to verify the name, date of birth, and the ss number. that is all// companies under 100 employees do not have any other option than to take the information provided on the I-9 and examine the documents given. if they appear to be genuine then they can hire. it is against federal law to make copies of their i.d. and keep it in the file. we used to do this and it cost me $50,000 to find out it was illegal

mtrack -

It's honorable of you to be concerned about your employee.

However, I also believe at this point that you should be concerned about your own hide.

It is your responsibility as the employer (through following the instructions on Form I9) to make certain that your employee is legally work authorized. A SS card with the words "Valid for Employment with USCIS Authorization Only" is only one of the documents needed.

The onus is on YOU as the employer to ask for all documents necessary. If ICE has your employee, they are likely to have you next. You are subject to fines at the least.

The portion of your post about an I130 is unclear. As for the children, if they were born in the US, they will not be deported. The length of time your employee will be barred from the US depends on how long he has overstayed his last I94.

i have been through this several times in the past about the i-9 and will probably be in it again in the future. as far as that goes ,I am in complete compliance with the laws concerning this. i was under the impression this was the best site around but now i am not so sure? this site seems to have people willing to jump on another persons misfortunes and not offer advice but complain about people trying to help. oh-well life goes on.

I think you made a very fair comment about the TOS and not giving advice on how to break the law. With all due respect to you, because I know that you offer many people sound and knowledgeable advice on VJ, I do think we have to consider that the OP was not aware of the illegal status of his employee and is now concerned about his personal welfare. Seeking advice on possible waivers and how this may affect the status of the family involved is not condoning a blatant illegal action. Unfortunately for the person involved he is going to pay the price now for his illegal status.

You're right, there are a ton of people on this site who live on judging others and believe their opinions are what matter most.

You really need to ask a lawyer regarding this situation. The bottom line is he/she will tell you that your employee broke the law and that you, whether it was knowingly or not, were too. Your employee did not have authorization to work in the US even if he had a valid SS# and that's why he will be deported. Tourist visas are not usually good for 10 years and even they are, they are not valid consecutively. So your employee had to go back to Mexico every so often in order for him not to lose his visa. Not only that, but this type of visa does not allow the immigrant to work in this country.

Also, even if his older child is old enough to petition him, he will be banned for an X amount of years due to his overstay. Again, a lawyer will explain this issue in further detail.

I also recommend that you go over every employee you have working for you at this point since it might be a possiblity that some of them do not have work authorizations either. That is, if you don't want to get in trouble for having hired them.


Good luck with everything!

Diana

There is something that confuses me about this situation. The employee in question has a valid SS# but he was using a tourist visa to enter the US? At some point previously, he must have had a visa eligible for a SS card right? So there may be a different aspect or timeline to the overstay and/or any bans resulting from it, no?

Upon re-reading this thread, Babblesgirl, you're right! I apologize if what I've stated in this thread has come across as judgmental. It was not my intention. It boils down to the necessity by both the employee and the employer for some competent legal advice. For the employee, it is necessary to find out the legal ramifications of being refused entry at POE, given that CBP states they have information regarding illegal employment. For the employer, it is as RJ stated....the burden for verification of employment authorization is on the employer. If what what transpired at the POE is accurate "was told they had info that he was living and working in the U.S. they said they had info his wife was working, what company,and that she just had a baby, also had their address" the employer may have some difficulty resulting from this.

-P

Possibly the SS card was acquired from an unofficial source. Yep, you're right, I think this is going to cause far more problems than the OP anticipated.

No need to apologise. I didn't want the OP to disregard your advice by thinking you were a rottweiler that's all

An employer must accept the documents presented by the Alien from List A, or one from List B and one from list C on the I-9, to show that the employee is work authorised. That could be done with a driver's llicense and a social security card. The employer has to be careful not to exhibit any discriminatory practises, and as such could only ask for further verification if the document does not appear "reasonably" genuine.

went to my attorney today to find out if there was a way to verify the rest of the employees we have working and it was like i remembered from the last incident. EMPLOYERS DO NOT HAVE THE RIGHT TO INQUIRE ABOUT THE LEGAL STATUS OF THEIR EMPLOYEES ??PERIOD// unless you want a large fine and jail time. this is made quite plain. all we can do is check what they give us against the list of approved documents and in our case we have to check out the SS#,date of birth, and the name with SS. before they are hired (as of 3pm today the employee in question still has a valid SS# for work only) all items matched w/SS. the ss# was assigned to him 20 yrs ago when he first worked for us and we checked the records in the archives and it is the same#. he had a work visa then so i do not know what the deal is with current visa. THANKS to all that tried to help. AL

My concern is what it means that your employee was told at the POE that they have information of his illegal employment, including the name of the company - your company? Or perhaps he had other employment to which that was in reference to? I understand that you verified what was required by law, but what does your lawyer advise, are there any legal ramifications to you, the employe,r in such a situation?

talked to the employee tonight. he said when he went to enter the agent looked at his i.d./visa/passport and told him that something was not right. they asked him alot of questions concerning his ss#that they saw when he pulled out the I.D.. they checked and it came back good. they asked him about his visa and said he should have had a B1/B2 visa . he told them that his visa was correct and that his wife has a B1/B2 visa HE has a work visa and has had one for several years . the agent said he would have to straighten it out in mexico. they give him everything back and sent him back to mexico. he faxed copies to his attorney here in washington who took them to the local office here. they told the attorney that he should not have been sent back because everything is in order. and they were the office where the paperwork originated. as far as the other info they supposedly knew about, work,baby ect. it was bull. he was carrying a baby seat that he loaned to his bil to take a baby to mexico and he was bringing it back for his own child to use . they were trying to find something on this guy. his wife does not work and they were just fishing for info. the local office checked and there is nothing on record about this as if it never existed. he is coming back into Portland on friday and there will be hell to pay if he has a problem this time according to the local office. evidently they have some new people in portland that do not have common sense. he is out 400.00 more but at least it is resolved.

I'm glad to hear that things look like they will be resolved. I really hope, if he does have the correct documentation, that he is able to return to his family asap. Good luck

Going back to the original post regarding eligibility of waivers....

It's my understanding that eligibility for hardship waivers for immigrant visas extends to spouses and children, but not to parents. If anyone has a different understanding, I'd like to hear about it.

I realize that the OPs situation seems to be resolved, but some value may still be gained from this thread if we could address the immigration questions that it raised.

This is what I found regarding waivers....

"...It is important to note that people who resided unlawfully in the United States for a year or more and who departed the United States, must continue to remain outside the United States until a waiver is granted. If they depart the United States and attempt to reenter or succeed in reentering the United States illegally thereafter without obtaining a waiver first, they will no longer be eligible for a green card or a waiver until they have resided outside the United States for ten years.

The waiver for previous unlawful presence is available only to those people who have a United States citizen or lawful permanent resident spouse and/or a United States citizen or lawful permanent resident parent. Furthermore, in order to be eligible for the waiver, the applicant must establish that their relatives will suffer extreme hardship if the applicant cannot reenter the United States before the three or ten-year period has passed.

It is very difficult to obtain a waiver from the USCIS offices abroad because the government applies a narrow view of what constitutes extreme hardship. But waivers are obtainable through the help of an immigration attorney who is an expert in this area of the law. This is no time to try a do-it-yourself waiver. The consequences are far too severe.

Link

It looks like the waiver eligibility doesn't work backwards....from child to parent.

-P

Well there were a number of interesting questions raised in the original post;

1. Deportation of a father and his eligibility for a waiver on a previous overstay.

The OP's friend appears to have valid presence in the US, however, had he been justifiably deported and his wife was on a B1/B2 visa then I imagine from what you have just posted he would not have been able to apply for a waiver since his wife is not a USC. A waiver for overstay is only applicable to the spouse or child of a USC. And even then he would have had to prove extreme hardship and face a waiting period equivalent to his overstay. Is this correct?

2. How the deportation of a parent would affect a child (who is over 21 and is a USC) applying for I-130.

Deportation of the parent is irrelevant to the child's application for immigration benefits for a spouse. Correct?

3. The onus on employers to verify a employee's legal status.

Already covered extensively in the thread

Please correct me if I'm wrong. I enjoy learning about the process

Just as a side note. Anybody, whether legal or not, who requested a SS# before 1986 would have been given a valid # with eligibility to work. The law changed after 1986 and since then, a person requires authorization to be in the country or be a US citizen to get a SS#.

Diana

I don't want to rip into you; but it is your responsibility as an employer to verify the status of an employee. It's not prying, it's the law.

all we can do as employers is what the law allows. been at this for over 35 yrs and have not had any problems yet. we are updated all the time with the new requirements and changes. i feel that until they change the laws we will always hear that it is ""our responsibility"" to check their status, but that is not the case. it is still up to the government to do this and they are trying the best they know how. it is not a perfect system. i have to keep a immigration law attorney on retainer just to keep up on all the recent changes coming. please read the case law and precedents available at findlaw or any other law library concerning employers and their responsibilities under immigration law. it will amaze you at what the government tried to impose on employers in regards to this. there are goverment workers who have been found to be illegal, including Police Officers that were illegal. it happens in all walks of life.